Simpson v. Johnson & Johnson

• Decision Date: 21 September 2020
• Docket Number: CASE NO. 5:20-cv-1237
• Parties: NEBRA SIMPSON, PLAINTIFF, v. JOHNSON & JOHNSON, et. al., DEFENDANTS.
• Court: U.S. District Court — Northern District of Ohio

NEBRA SIMPSON, PLAINTIFF,
v.
JOHNSON & JOHNSON, et. al., DEFENDANTS.

CASE NO. 5:20-cv-1237

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

September 21, 2020

JUDGE SARA LIOI

MEMORANDUM OPINION AND ORDER

Nebra Simpson ("Simpson" or "plaintiff") began this action by filing a Short Form Complaint against Johnson & Johnson and Ethicon, Inc. (collectively, "defendants")¹ as part of multidistrict litigation (MDL 2327) assigned to the United States District Court for the Southern District of West Virginia. (Doc. No. 25, Memorandum in Opposition to Motion for Partial Summary Judgment ["Opp'n"] at 1252²; Doc. No. 31, Transfer Order ["Transfer Order"] at 1327.)³

Now before the Court is defendants' motion for partial summary judgment. (Doc. Nos. 22 & 23 ["Mot."].) Defendants seek summary judgment as to the following claims: Negligence (Count I), Strict Liability - Manufacturing Defect (Count II), Strict Liability - Defective Product (Count IV), Common Law Fraud (Count VI), Fraudulent Concealment (Count VII), Constructive Fraud (Count VIII), Negligent Misrepresentation (Count IX), Negligent Infliction of Emotional

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Distress (Count X), Breach of Express Warranty (Count XI), Breach of Implied Warranty (Count XII), Violation of Consumer Protection Laws (Count XIII), Gross Negligence (Count XIV), and Unjust Enrichment (Count XV). (Mot. at 1223.)

In her opposition brief, plaintiff indicated she will not pursue Counts II, IV, and VI-XVI. (Opp'n at 1254.) Accordingly, the only remaining claim for this Court to address in considering partial summary judgment is Negligence (Count I).

For the reasons detailed below, defendants' motion for partial summary judgment is granted in part and denied in part.

I. BACKGROUND

This case arises from the surgical implantation of defendants' pelvic mesh device, the TVT, in the plaintiff in 2009. (Mot. at 1224 [citing Doc. 22-1, Plaintiff Fact Sheet ["Fact Sheet"] at 4].) Defendants Johnson & Johnson and Ethicon, Inc., a wholly owned subsidiary of Johnson & Johnson, designed, manufactured, marketed, advertised, promoted, and sold TVT. (Doc. No. 32-1, Long Form Complaint ["Long Compl."] at ¶¶ 3-5, 7.)

Plaintiff makes three allegations of negligence, as follows:

91. Defendants breached their duty of care and were negligent as described herein in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of the Pelvic Mesh Products in one or more of the following respects: a. Failing to design the Products so as to avoid an unreasonable risk of harm to women in whom the Products were implanted, including Plaintiff[]; b. Failing to manufacture the Products so as to avoid an unreasonable risk of harm to women in whom the Products were implanted, including Plaintiff[]; c. Failing to use reasonable care in the testing of the Products so as to avoid an unreasonable risk of harm to women in whom the Products were implanted, including Plaintiff[]; d. Failing to use reasonable care in inspecting the Products so as to avoid unreasonable risk of harm to women in whom the Products were implanted, including Plaintiff[]; e. Failing to use reasonable care in training its employees and health care providers related to the use of the Products so as to avoid unreasonable risk of harm to women in whom the

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Products were implanted, including Plaintiff[]; f. Failing to use reasonable care in instructing and/or warning health care providers, the FDA and the public as set forth herein of risks associated with the Products, so as to avoid unreasonable risk of harm to women in whom the Products were implanted, including Plaintiff[]; g. Failing to use reasonable care in marketing and promoting the Products, so as to avoid unreasonable risk of harm to women in whom the Products were implanted, including Plaintiff[]; h. In negligently and carelessly promoting the use of the Pelvic Mesh Products to physicians who had not received sufficient training to master the techniques necessary for implantation of the device into the Plaintiff[]; i. Otherwise negligently or carelessly designing, manufacturing, marketing, distributing, warning, labeling studying, testing or selling the Pelvic Mesh Products."

92. [Defendants] [f]ailed to conduct post-market vigilance, or surveillance, by: a. Monitoring or acting on findings in the scientific and medical literature; and b. Monitoring or investigating and evaluating reports in the FDA adverse event databases for their potential significance for defendants' Pelvic Mesh Products.

93. [Defendants] [f]ailed to comply with manufacturer requirements of the Medical Device Reporting (MDR) Regulations, specifically: a. Failed to report MDRs (Medical Device [adverse event] Reports); and b. Failed to investigate reports of serious adverse events.

(Long Compl. ¶¶ 91-93.)

Plaintiff seeks compensatory damages related to personal injuries and health and medical care costs; restitution and disgorgement of profits; reasonable attorneys' fees; legal costs; all ascertainable economic damages; and punitive damages. (Id. at 1400-01.)

II. STANDARD OF REVIEW

When a party files a motion for summary judgment, it must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record ...; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

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Fed. R. Civ. P. 56(c)(1).

In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the nonmoving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943-44 (6th Cir. 1990), impliedly overruled on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190 (1991). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases a court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [nonmoving party] is entitled to a verdict[.]" Id. at 252.

"Once the moving party has presented evidence sufficient to support a motion for summary judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant probative evidence must be presented to support the complaint." Goins v. Clorox Co., 926 F.2d 559, 561 (6th Cir. 1991). The party opposing the motion for summary judgment may not rely solely on the pleadings but must present evidence...